SARMAD JALAL OSMANY, J.---This appeal impugns the judgment dated 7-7-2004 passed by the learned Guardian Judge, Sanghar in Guardianship Application No,1 of 2001 whereby the respondent No,1 was given custody of the minors.
2. Briefly stated the facts of the matter per the respondent No,1 are that she is the real mother of minors viz. Nimra now, aged about 12 1/2 years (daughter) Salman aged about 11 years, Yasir aged about 8 years and Hamza aged about 5 years (sons) whereas the appellants Nos.1 and 2 are her father-in-law and mother-in-law respectively and appellants Nos.3 and '4 are her brothers-in-law.
She along with the minors and her late husband Muhammad Javed were settled in Quetta where the latter was serving as an XEN in PWD Quetta whereas she was employed as Medical Officer in Bait-ul-Mal Department Quetta. Minor Nimra, Salman and Yasir were at that time receiving education in the Best English Medium School at Quetta whereas Hamza being under age was not yet admitted to any School. Unfortunately late Muhammad Javed died during an attack by terrorists when he was travelling in between Kahan and Kohlu while on official duty on 1-6-2001.
Thereafter the respondent No,1 and the minor children accompanied the deceased to Tando Adam for burial as this was his ancestral home. The respondent No,1 passed her 'Iddat' period with her in- laws at Tando Adam where after she wanted to return to Quetta along with the minors. However, the appellants did not allow the minors to accompany her. Per respondent No,1 she was at the time earning Rs,12,000 per month and so also after the demise of her husband she is receiving the full family pension including free medical facilities plus education for his children. Similarly she has been allotted Federal Lodge No,2 at Quetta by the Ministry of Housing and Works in Islamabad as well as an amount of Rs,500,000 has been sanctioned to her as compensation for the death of her husband while on duty. Consequently, as the minors have now being forcibly kept by the appellants, therefore, the respondent No,1 was constrained to file Guardian and Wards application before the learned Judge.
3. The appellants contested the matter. They admitted the relationship between the respondent No,1 and the deceased as well as the factum of his death. So also it has been admitted that the respondent No,1 passed her `Iddat' period at Tando Adam with them. However, the appellants denied that they ever restrained the minors from going with the respondent No,1 to Quetta. On the other hand it is their case that the respondent No,1 agreed to settle in Tando Adam with the minors and accordingly arranged for their School Leaving Certificates from Quetta for the purpose of their admission to School in Tando Adam and consequently the minors are now receiving education at Saint Phillips School in that Town. Thereafter, the respondent No,1 decided to return to. Quetta while leaving the minors in the care of the appellants and promised to visit them regularly. It is the further case of the appellants that the respondent No,1 is living in a joint family system with her parents and three married brothers and their families in a single bungalow and hence there is insufficient accommodation for the Minors therein. On the other hand the appellant No,1 being the leading Income Tax Lawyer in Tando Adam is living in a Bungalow of 1200 sq.Yds with all the amenities etc. He also owns a Suzuki Khyber Car which is in the name of his son. Further, that the respondent No,1 being a Government employee would hardly have any time to spend with the minors as in Quetta she used to come home from her job in the evening during which time the minors were placed in a Day Care Centre. Hence they have prayed that the application be dismissed.
4. Upon the pleadings of the parties, the learned Court framed the following issues:--- (1). Who is entitled for the custody of the Minors? (2) What should the order be?
5. The parties led their evidence during the course of which the respondent No,1 examined herself as well as her ,two brothers namely Dr. Muhammad Aslam and Nadim Amir whereas from the appellant side appellant No,1 examined himself, appellant No,3 Pervez Akhtar, his son, Minor Nimra and Salman and Qari Muhammad Shakir. Thereafter, upon hearing the arguments of learned counsel for parties, the relearned Guardian Judge allowed the application and gave the custody of the Minors to the respondent No, 1.
6. On the basis of foregoing facts and evidence on the record, learned counsel for appellants has firstly submitted that the welfare of the Minors is the supreme consideration in deciding guardianship matters in which the wishes of the Minors have also to be considered. In this regard he has submitted that admittedly the appellant No,1 who is the paternal grandfather of the Minors is living in his own bungalow measuring 1200 yards, whereas the appellants Nos.3 and 4 who are his sons are an officer of Angro Chemicals and Inspector of F.I.A. Respectively. Hence the appellants have sound financial means and are educating the Minors in Saint Phillips School, Tando Adam which is the best school in the Town. So also they are being provided religious education at home, Furthermore, the Minors have expressed their complete unwillingness to accompany their mother in which regard he has referred to the evidence of Nimra and Salman. To the contrary, per learned counsel the Government accommodation allotted to respondent No,1 in Quetta is a temporary one and she is earning only Rs,12,000 per month whereas the amount of Rs,500,000 promised by the Government as compensation for the murder of the deceased has not yet been received by her.
Consequently, per learned counsel the Minors' welfare lies in their continued residence with the appellants. Furthermore, the appellants are willing to handover the custody of the Minors, to the respondents No,1 provided she shifts to Karachi along with them where the appellants would provide them an independent car and flat as well as meet all their financial needs and have them admitted to the best schools etc. For all the foregoing reasons learned counsel has prayed that the appeal be allowed. In support of his arguments he has relied upon Muhammad Shafi v. Maqbool Afza (1986 SCM R 1634) and S.M. Aslam v. Rubi Akhtar (1996 CLC 1).
7. On the other hand Mr. Muhammad Nadeem Khan appearing for the respondent No,1 has submitted that the Impugned Judgment is based on a correct appreciation of the facts, the evidence on the record as well as the law applicable thereto. According to him it is not disputed that the respondent No,1 at the time was earning Rs,12,000 per month as salary from her employment with the Bait-ul-Mal Department (per learned counsel now she is receiving Rs,20,000 per month as Medical Officer with the Frontier Corps, Quetta). So also she is receiving full pension benefits of her late husband and has been allotted official accommodation in Quetta. In addition, she has been awarded a lump sum grant of Rs,5,00,000 as compensation for the - death of her husband while on Official duty. Similarly the Minors are entitled to get free education plus medical facilities up to the age of 25 years. In this regard he has relied upon the office memorandum issued by the Government of Pakistan, Finance Division, dated 4-5-2001 which he has produced during the course of arguments. As opposed to this, the appellants Nos.1 and 2 who are the maternal grandparents of the Minors are aged persons and can hardly look after them. Similarly, appellants Nos.3 and 4 who are the uncles of the Minors have their own families to look after and consequently it cannot be expected that they would give the same degree of love and affection to the Minors as to their own children. On the other hand the respondent No,1 being their real mother is eminently qualified to do the same. In fact she has even not remarried for this very purpose. As regards the testimony of the Minors wherein they have preferred to stay with the appellants, per learned counsel this is due to the tutoring by the appellants as rightly observed by the learned Guardian Judge in the impugned judgment. Per learned counsel in any event the wishes of the Minors cannot be conclusive as a matter of principle and each case has to be decided on its own particular facts.
In support of his submissions, learned counsel has relied upon Mst. Abda Bibi v. Abdul Latif (2002 CLC 1416), Shagufta Bano v. Musarrat Hanif (1982 CLC 1821) and Mst. Aisha v. Manzoor Hussain (PLD 1985 SC 436).
8 I have heard both learned counsel and have perused the record with their assistance.
9. It would be seen that apart from a few instances, the facts as set up by both the parties- before the learned Guardian Judge are not disputed. With regard to such disputes the appellants.Have alleged the respondent No, l's animosity towards the deceased due to his second marriage as well as laid the murder of the deceased at the door-step of her family. Further during their evidence, the appellant No,1. Minor Nimra and Salman have deposed that during the course of an argument between respondent No,1 and deceased, she had cut his finger with a knife. However, in my opinion, the appellants have not been able to prove the animosity between the deceased and the respondent No,1 as well the allegation that the latter's murder was caused by the respondent No, l's family. Insofar as the allegation of causing injury to the deceased by her, the same appears to be an afterthought, as it was never pleaded by the appellants. In any event, such factual controversies, in my opinion, are not at all relevant for deciding the main issue in this matter viz. In whose care and custody should the Minors be delivered.
10. In this regard it would be seen that in guardianship matters the paramount consideration is the welfare of the Minors which consists not only of their material and physical well-being but their emotional and rich logical health as well. It is settled law that the grandparents of the Minor cannot replace the love and affection which can be bestowed upon him/her by his natural/real parents and unless there are other considerations not to do so, custody is normally given to the latter. In the present case, it appears that both the parties are financially sound enough to look after the needs of the Minors. On the one hand, admittedly, the appellant No,1 lives in his own bungalow in Tando Adam, owns a car and is educating the Minors in a good school. However, it has also come on record that two of his sons who are the appellants Nos.3 and 4 live with him along with their families. On the other hand it has also been established by the respondent No,1 that she is a doctor by profession and is currently in Government service in Quetta where she three years ago used to earn Rs,12,000 per month. Additionally, she is living in Government accommodation and receiving widow pension and is also entitled to free medical and educational benefits for her children. So also the Government has allocated a sum of Rs,500,000 as compensation for the death of her husband. She has not remarried for the sake of her children and nothing has come on record which, is adverse to her character and reputation. Considering all these factors, on balance, in my opinion, the welfare of the Minors lies with the respondent No,1. Insofar as the wishes of the Minors are concerned, no doubt, it is one of the factors to be taken into consideration but cannot be decisive in the matter. After all, the Minors are of tender age and it cannot be expected that they should be able to decide where their welfare lies. In this regard although, both minors during the course of evidence as well as in my presence have expressed their unwillingness to accompany their mother, in my opinion, this is the result of their association with their grandparents and they cannot be expected to say anything else. Reliance can be placed upon the case of Mst. Aisha v.
Manzoor Hussain (supra), where the Honourable Supreme Court has held that the Minor is not the best judge of where his/her welfare lies.
11. For all the foregoing facts and reasons, this appeal is dismissed. The appellants are directed to hand over custody of the Minors to the respondents No,1 immediately. However, it is further ordered that during their School Summer Vacations, the Minors shall be allowed to stay with the appellants for one month and during Winter Vacation for one week. So also the appellants would have the right to visit the Minors. The Appeal stands disposed of.